Julia Martin, Esq. jmartin@bruman.com WWW.BRUMAN.COM What is Lobbying, Exactly? Rules and Regulations on the Use of Federal Dollars Julia Martin, Esq. jmartin@bruman.com WWW.BRUMAN.COM

Why have these rules? Brustein & Manasevit, PLLC © 2018. All rights reserved.

Constitutional Origins “Congress shall make no law respecting… the right of the people peaceably to assemble… and to petition the Government for a redress of grievances.” - Amendment I Brustein & Manasevit, PLLC © 2018. All rights reserved.

But… Lobbying as a profession soon developed Why is this problematic? Lack of accountability Lack of transparency Full time lobbyists have more resources and time to devote to issues than ordinary citizens Brustein & Manasevit, PLLC © 2018. All rights reserved.

Coming to a head Coordinated lobbying backfires Spring 1935: lobbyists attempted to block passage of a bill that would have broken utility companies into smaller market shares. Lobbyists sent hundreds of telegrams impersonating constituents demanding Senators vote down the measure. In response, Public Utilities Holding Company Act was amended to require registration of all company agents World War II and foreign influence: Foreign Agents Registration Act of 1938 Federal Regulation of Lobbying Act of 1946 Brustein & Manasevit, PLLC © 2018. All rights reserved.

Goal of lobbying rules Evolved into Lobbying Disclosure Act of 1995 and subsequent amendments Primary goals: Provide transparency to Congress and public Limit “pay for play” / eliminate bribery Limits foreign interests Limit influence of “special interests” Level the playing field? Brustein & Manasevit, PLLC © 2018. All rights reserved.

What is Not lobbying Brustein & Manasevit, PLLC © 2018. All rights reserved.

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Protest and public demonstration  not lobbying

Political donations  Not lobbying Brustein & Manasevit, PLLC © 2018. All rights reserved.

Private advocacy  Not *quite* lobbying Sen. Jeff Flake (R-AZ) Private citizen urging Flake to vote against Kavanaugh confirmation Private advocacy  Not *quite* lobbying Brustein & Manasevit, PLLC © 2018. All rights reserved.

What is “Lobbying” Brustein & Manasevit, PLLC © 2018. All rights reserved.

A quick(ish) note on “Lobbying” At a general level, any kind of advocacy = lobbying However, for purposes of federal law, federal agencies, and Congress, lobbying and related disclosures are governed by the Lobbying Disclosure Act (LDA) Create specific definitions of “lobbying” and “lobbyist” Sets requirements for registering as a lobbyist Brustein & Manasevit, PLLC © 2018. All rights reserved.

The LDA In order to be considered a lobbyist under the LDA, an individual must meet all three of the following requirements: Employed or retained by a client for financial or other compensation; Whose services that include more than one lobbying contacts; AND Lobbying activities must constitute 20% or more of his or her services’ time on behalf of that client during a three- month period.* *may be any three-month period, not necessarily quarterly Brustein & Manasevit, PLLC © 2018. All rights reserved.

The LDA …note this definition doesn’t really square with job description for State/LEA employees Brustein & Manasevit, PLLC © 2018. All rights reserved.

The LDA Generally, an individual must register as a lobbyist with House/Senate when he or she meets four qualifications: Is a lobbyist per the LDA; Employed or retained to make lobbying contacts; Employed to make the contacts under (2) for a specific client; AND With income or expenses from lobbying activities for that client over a specific monetary threshold (currently $3,000 per quarter). Brustein & Manasevit, PLLC © 2018. All rights reserved.

The LDA A “lobbying contact” is any oral, written, or electronic communication with legislative or executive branch officials or employees made on behalf of a client with regard to: The formulation, modification, or adoption of federal legislation, including legislative proposals; The formulation, modification, or adoptions of a federal rule, regulations, executive order, or any other program, policy, or position of the United States Government; The administration or execution of a federal program or policy (including the negotiation, award, or administration of a federal contract, grant, loan, permit, or license); or The nomination of a person for a position subject to confirmation by the Senate. Brustein & Manasevit, PLLC © 2018. All rights reserved.

The LDA: EXCEPTIONS Administrative requests Includes requests for a meeting, scheduling meetings, requests for the status of an action, and requests for transcripts, records, or regulations); Communications are NOT exempted when the request itself constitutes an attempt to influence government activity (must look to intent). Information provided at the request of legislative or executive branch officials or employees Response must be in writing and directed to the same person who requested the information Informational requests from an individual to a covered official MAY be considered lobbying contacts – this depends on the motivation as it is a gray area in the law Brustein & Manasevit, PLLC © 2018. All rights reserved.

THE LDA: EXCEPTIONS Responses to formal solicitations in the Federal Register or other publications; The response must be to the official and in the format requested in the publication Communications in formal administrative hearings; Communications with regard to agency-initiated civil, criminal, and administrative proceedings; UNLESS the communication constitutes commentary on the overall process or policy Brustein & Manasevit, PLLC © 2018. All rights reserved.

The LDA Communications to the public Any sort of speech, article, publication, or other material distributed and made available to the public, or expressed/made available through radio, television, cable television, or other medium of communications Written comments and other communications in public proceedings E.g. comments on rulemakings Brustein & Manasevit, PLLC © 2018. All rights reserved.

The LDA Notes: Exceptions are narrowly construed Even if the communication would be exempted, it may still be considered lobbying if it is made in support of a lobbying contact. This includes activities which are not strictly lobbying contacts themselves, but are done with the intent of pursuing later lobbying contacts, e.g.: A status request on a draft bill Drafting talking points on a policy Intent and tone of communication is important! Brustein & Manasevit, PLLC © 2018. All rights reserved.

Is this a lobbying contact? (1) You draft comments in response to a proposed regulation on the supplement, not supplant requirement on Title I published in the Federal Register Brustein & Manasevit, PLLC © 2018. All rights reserved.

Is this a lobbying contact? (2) You respond to an inquiry from your Congressman’s office regarding how you plan to implement the supplement, not supplant requirement in the absence of regulations Brustein & Manasevit, PLLC © 2018. All rights reserved.

Is this a lobbying contact? (3) Your assistant sends an email to ED asking to schedule a technical assistance call on supplement, not supplant Brustein & Manasevit, PLLC © 2018. All rights reserved.

Is this a lobbying contact? (4) You send an email to ED suggesting content for future supplement, not supplant guidance Brustein & Manasevit, PLLC © 2018. All rights reserved.

Federal Funds and Lobbying Brustein & Manasevit, PLLC © 2018. All rights reserved.

Restrictions on Federal Funds As a general rule, any grant award notification will specify (or ask for assurance) that federal funds may not be used for lobbying Applies to any recipient of a federal contract, grant, loan or cooperative agreement Specifically prohibits using federally appropriated funds to influence the executive branch or Congress in connection with any federal contract, grant, loan, or cooperative agreement (including for the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement) Source: the Byrd amendment (31 U.S.C. §1352) Brustein & Manasevit, PLLC © 2018. All rights reserved.

Restrictions on Federal Funds Also part of the Uniform Grants Guidance (2 CFR §200.450): The cost of certain influencing activities associated with obtaining grants, contracts, cooperative agreements, or loans is an unallowable cost. “Costs incurred in attempting to improperly influence either directly or indirectly, an employee or officer of the executive branch of the Federal Government to give consideration or to act regarding a Federal award or a regulatory matter are unallowable. Improper influence means any influence that induces or tends to induce a Federal employee or officer to give consideration or to act regarding a Federal award or regulatory matter on any basis other than the merits of the matter.” Brustein & Manasevit, PLLC © 2018. All rights reserved.

Restrictions on Federal Funds Bottom line: no federal funds for federal lobbying activities Brustein & Manasevit, PLLC © 2018. All rights reserved.

Restrictions on Federal Funds Additional Restrictions for IHEs and non-profits No attempts to influence federal, State, or local elections or other political activities No attempts to influence the introduction, passage, or modification of federal or State laws No legislative liaison activities including attendance at hearings or analysis of legislation when preparing for possible lobbying Higher standard than K-12 Intent/motivation key here too! Brustein & Manasevit, PLLC © 2018. All rights reserved.

Restrictions on Federal Funds “Each person who requests or receives a Federal contract, grant, loan, or cooperative agreement from an agency or requests or receives from an agency a commitment providing for the United States to insure or guarantee a loan shall file… a written declaration” Must contain: The name of any lobbying registrants “a certification that the person making the declaration has not made, and will not make, any payment prohibited…” Source: the Byrd amendment (31 U.S.C. §1352) Brustein & Manasevit, PLLC © 2018. All rights reserved.

Restrictions on Federal Funds Exceptions: Technical/factual presentations Similar to LDA lobbying contacts exception! Travel/lodging/meals still unallowable Any costs exempted under the LDA Efforts to reduce costs Items directly permitted under a grant Brustein & Manasevit, PLLC © 2018. All rights reserved.

Organizational Expenditures Representative and professional organizations which engage in lobbying are required to report under the LDA NEA/AFT AASA Committee for Education Funding Dues to those organizations may not be paid fully out of federal funds if they engage in lobbying Organization will provide a breakout of the “share” of expenses to be paid for lobbying That share must be paid for out of non-federal funds Brustein & Manasevit, PLLC © 2018. All rights reserved.

Is this permissible? (A) You are a school district employee supported by federal funds. You submit an application for a competitive grant to the address provided by ED. Brustein & Manasevit, PLLC © 2018. All rights reserved.

Is this permissible? (B) You are a State employee fully funded by State dollars. You call Betsy DeVos and tell her you really, really want a competitive grant from the new Sabbaticals for Education Administrators Program. Brustein & Manasevit, PLLC © 2018. All rights reserved.

Is this permissible? (C) You are a school district employee supported by federal funds. You email State legislators to let them know that passage of a proposed assembly bill would impair your ESSA State plan and they shouldn’t do it. Brustein & Manasevit, PLLC © 2018. All rights reserved.

Is this permissible? (D) You are a community college employee supported by federal funds. You email State legislators to let them know that passage of a proposed assembly bill would impair your ESSA State plan and they shouldn’t do it. Brustein & Manasevit, PLLC © 2018. All rights reserved.

An even quicker test… (1) Is this activity – or could it be taken as – an attempt to influence a federal decision-making process? (or State process for IHEs and non- profits) (2) Does the funding come from federal sources? Brustein & Manasevit, PLLC © 2018. All rights reserved.

Consequences Brustein & Manasevit, PLLC © 2018. All rights reserved.

LDA Penalties “Whoever knowingly fails: (1) to correct a defective filing within 60 days after notice of such a defect by the Secretary of the Senate or the Clerk of the House; or (2) to comply with any other provision of the Act, may be subject to a civil fine of not more than $200,000, and whoever knowingly and corruptly fails to comply with any provision of this Act may be imprisoned for not more than 5 years or fined under Title 18, United States Code, or both.” Brustein & Manasevit, PLLC © 2018. All rights reserved.

Other Penalties Withholding of funds Repayment of funds Administrative Programmatic Repayment of funds Treasury Offset Program Brustein & Manasevit, PLLC © 2018. All rights reserved.

Other penalties UGG Certifications (2 CFR §200.415): ‘‘By signing this report, I certify to the best of my knowledge and belief that the report is true, complete, and accurate, and the expenditures, disbursements and cash receipts are for the purposes and objectives set forth in the terms and conditions of the Federal award. I am aware that any false, fictitious, or fraudulent information, or the omission of any material fact, may subject me to criminal, civil or administrative penalties for fraud, false statements, false claims or otherwise. (U.S. Code Title 18, Section 1001 and Title 31, Sections 3729–3730 and 3801–3812).’’ Brustein & Manasevit, PLLC © 2018. All rights reserved.

How to Advocate effectively Brustein & Manasevit, PLLC © 2018. All rights reserved.

Brustein & Manasevit, PLLC © 2018. All rights reserved. WHY? Organizations/individuals often have specific policy interests or issues which can be addressed through specific legislation, regulations, or guidance Constitutional right to “petition the government for a redress of grievances” Brustein & Manasevit, PLLC © 2018. All rights reserved. Brustein & Manasevit, PLLC © 2018. All rights reserved.

Why? Lawmakers don’t always know something is a problem until they hear from you! Lots of time elapses from passage of law to implementation – easy to lose track, get distracted – or new members elected! Problems develop as time goes on ESSA “transition year” First year of full ESSA implementation First attempt at ESEA reauthorization First ESSA State plans due ESSA passes 2007 2015 2016 2017 2018

WHO? Who should advocate? Advocacy organizations (i.e. NAESPA, NAFEPA, NAFIS, NASSP, NSBA, etc.) Local governmental organizations: SEA, LEA, School boards Professionals in their professional capacity bringing technical expertise Caution: Restrictions on use of federal funds for lobbying and restrictions on tax exempt organizations Individuals Brustein & Manasevit, PLLC © 2018. All rights reserved.

WHAT? What can be the target of effective advocacy? Federal statutes (i.e. ESSA but also smaller laws) Changes can only come from Congress Federal funding/appropriations levels (Congress) Federal regulations - must be formally changed Agency guidance, policy letters Brustein & Manasevit, PLLC © 2018. All rights reserved.

WHERE? Washington, D.C. At home in the Congressional district Offices of Representatives and Senators where policy staffers work BUT! Remember restrictions on federal funds! At home in the Congressional district Lawmakers spend lots of time in their home districts and this can be a good opportunity to meet directly with them However, they may not have their policy staff with them (follow-up may be lackluster)-(see above re: staffers) Check the Congressional calendar for dates and times of “district work periods” (aka Congressional recess) Brustein & Manasevit, PLLC © 2018. All rights reserved.

WHERE? (CONT.) Remotely Negotiated Rulemaking Via solicitations for comments in the Federal Register E.g. ED’s recent solicitation for comments on delay of enforcement for disproportionate identification rules Via letter to agency staff/heads or Congressional delegation Less effective than face to face Large scale letter writing - especially form letters - not generally as effective Negotiated Rulemaking Get on committee or contact existing committee member Brustein & Manasevit, PLLC © 2018. All rights reserved.

WHEN? AS EARLY AS POSSIBLE! Legislation Discussions on legislation begin months or years before a major reauthorization is completed Regulations usually follow reauthorization Earlier discussions – and even agency action – can become a part of “legacy” Attempts at ESEA reauthorization in 2007, 2011, 2013 informed ESSA Once reauthorized or regulated, little appetite to “open up” legislation again for some time Brustein & Manasevit, PLLC © 2018. All rights reserved.

WHEN? (CONT.) Appropriations Process starts in earnest in April for following fiscal year (starting in October) Offices begin to talk about wish lists in March Agencies start debating budget asks in January President’s budget request is due to Congress in February Brustein & Manasevit, PLLC © 2018. All rights reserved.

HOW? Figure out exactly what you want to change Determine who can change it Legislative or regulatory? Come with an “ask” Numbers/facts/personal stories have impact Specific sections of law or regulations Be a problem-solver What would fix this issue? Brustein & Manasevit, PLLC © 2018. All rights reserved.

Questions? Brustein & Manasevit, PLLC © 2018. All rights reserved.

Legal Disclaimer This presentation is intended solely to provide general information and does not constitute legal advice or a legal service.  This presentation does not create a client-lawyer relationship with Brustein & Manasevit, PLLC and, therefore, carries none of the protections under the D.C. Rules of Professional Conduct.  Attendance at this presentation, a later review of any printed or electronic materials, or any follow-up questions or communications arising out of this presentation with any attorney at Brustein & Manasevit, PLLC does not create an attorney-client relationship with Brustein & Manasevit, PLLC.  You should not take any action based upon any information in this presentation without first consulting legal counsel familiar with your particular circumstances.